Wisconsin Legislature: ATCP 103.01

Ch. ATCP 103 Note Note: This chapter is adopted under authority of ss. 93.07 (1) and 100.201, Stats., and is subject to penalties provided under s. 100.201 (9), Stats. Sections ATCP 103.03 to 103.17 establish a uniform system of accounting, pursuant to s. 100.201 (2) (h) 3., Stats., to be used in determining whether selected dairy products are being sold below cost.

ATCP 103.01 ATCP 103.01 Definitions. As used in this chapter:

ATCP 103.01(1) (1) “Allocate" means the distribution of an expense to specific products or functions based on some quantitative factor such as points, gallons, other expense totals.

ATCP 103.01(2) (2) “All products" means the entire volume of every item produced and sold.

ATCP 103.01(3) (3) “Assign" means the distribution of an expense to specific products or functions based on actual or estimated uses of the material or service represented by the expense.

ATCP 103.01(4) (4) “Case" means a device, apparatus or secondary container used by a wholesaler to deliver containers of a selected dairy product to another wholesaler or to a retailer. “Case" includes a box, pallet, milk cart or crate, but does not include a vehicle, trailer or refrigeration unit.

ATCP 103.01(5) (5) “Container" means the immediate package in which a selected dairy product is sold or offered for sale.

ATCP 103.01(6) (6) “Distribution categories" means retail milk, wholesale milk, vendor milk, special route milk, wholesale ice cream, vendor ice cream, special route ice cream.

ATCP 103.01(7) (7) “Dock sale" means selling at wholesale at any wholesaler's loading platform to retailers or other wholesalers, and may include loading of product sold into trucks.

ATCP 103.01(8) (8) “Drop delivery" means the product is pre-ordered and assembled prior to loading on the truck; the product is pre-arranged in the truck for delivery to retail outlets and on arrival is placed on the retailer's dock or in a back room storage area, or placed on the tailgate for off-loading by the retailer, without the pick-up or return of outdated product.

ATCP 103.01(9) (9) “Full service delivery" means receiving an order for the delivery of a selected dairy product, putting up the order, delivering the product, stocking the display and storage coolers with the product, making out the invoice and delivery ticket for the product, removing outdated product, price marking the product and collecting payment for the product and delivery service.

ATCP 103.01(10) (10) “Milk cart" means a wheeled apparatus, commonly known as a “bossy cart," that is owned by a wholesaler, used for the delivery of selected dairy products to a retailer, and returned to the wholesaler when the wholesaler makes the next delivery of selected dairy products to the retailer.“Milk cart" does not include a cart equipped with a refrigeration unit.

ATCP 103.01(11) (11) “Milk products" means all products produced and sold with the exception of ice cream products and special products as defined herein.

ATCP 103.01(12) (12) “Modified drop delivery" means a form of drop delivery which includes putting up the order from an order form prepared by the retailer prior to arrival of the delivery truck and placing the product in the retailer's storage cooler.

ATCP 103.01(13) (13) “Other products" means a product category used only for determining processing, packaging and distribution expense. It includes products other than fluid milk, ice cream products, cottage cheese and special products. It includes sour cream, butter, products in pressurized containers and similar products. Such products are milk products for all other purposes.

ATCP 103.01(14) (14) “Price" means the amount charged for the sale of a selected dairy product, including applicable surcharges and net of applicable discounts, rebates and allowances.

ATCP 103.01(15) (15) “Selected dairy product" means any of the products specified in s. 100.201 (1) (c), Stats., or any of the following products:

ATCP 103.01(15)(a) (a) Low fat milk

ATCP 103.01(15)(b) (b) Yogurt or yoghurt

ATCP 103.01(15)(c) (c) Frozen yogurt

ATCP 103.01(16) (16) “Special products" means products not generally distributed on wholesale or retail route trucks (e.g. dry milk products).

ATCP 103.01(17) (17) “Special routes" means routes other than regular retail or wholesale routes, e.g. school milk routes, military installation routes, routes to chain store warehouses.

ATCP 103.01(18) (18) “Warehouse" means space used to store ingredients and supplies, but shall not include finished products storage.

ATCP 103.01(19) (19) “Warehouse delivery" means delivery of product in truckload lots, either palletized or unpalletized, to the wholesaler's or retailer's warehouse, and includes the unloading or placement of product into the cooler for further distribution by the wholesaler or retailer.

ATCP 103.01(20) (20) “Wholesaler" has the meaning given in s. 100.201 (1) (f), Stats.

ATCP 103.01 History History: Cr. Register, November, 1966, No. 131, eff. 12-1-66; am. (9); rn. and am. (10) and (11) to be (11) and (10); rn. (12) to be (14); cr. (12) and (13); Register, January, 1975, No. 229, eff. 2-1-75; renum. (1) to (8) and (10) to (14) to be (2), (11), (13), (16), (17), (1), (6), (8), (12), (7), (19) and (18); r. (9); cr. (intro.), (4), (5), (9), (10), (14), (15) and (20), Register, March, 1994, No. 459, eff. 4-1-94.

ATCP 103.02 ATCP 103.02 General requirements.

ATCP 103.02(1) (1) Wholesaler to publish price list for selected dairy products. Every wholesaler of selected dairy products shall publish a price list for those products as required by s. 100.201 (2) (a) 1., Stats. The price list shall include all of the information required under s. 100.201 (2) (a) 1., Stats. Prices shall be specified for each standard category of delivery service identified under this chapter, including full service delivery, drop delivery, modified drop delivery, dock sale and warehouse delivery. Any deviations from these standard categories of delivery service shall be fully described in the price list.

ATCP 103.02(2) (2) Deviation from published price; meeting competition; documentation required.

ATCP 103.02(2)(a)(a) Except as provided under par. (b), no wholesaler may sell a selected dairy product at a price which differs from the price stated in the wholesaler's published price list. A price differs from the wholesaler's published price if the wholesaler provides any discount or rebate, or any increase in delivery service, which is not published in connection with the wholesaler's published price.

ATCP 103.02(2)(b) (b) A wholesaler may sell a selected dairy product at a price which differs from the wholesaler's published price if all of the following apply:

ATCP 103.02(2)(b)1. 1. The wholesaler offers the unpublished price to meet a competitor's bona fide price offer.

ATCP 103.02(2)(b)2. 2. The wholesaler makes a written record, before selling at the unpublished price, of the competitive offer which the unpublished price is intended to meet. The record shall include the date of the competitive offer, the terms of the competitive offer, the actual or prospective purchaser to whom the competitive offer was made, and the name of the competitor who made the offer. A wholesaler's record of a competitive offer shall be made available to the department for inspection and copying upon request.

ATCP 103.02(2)(b)3. 3. The wholesaler offers the unpublished price for not longer than 180 days after the last competitive offer documented by the wholesaler under subd. 2.

ATCP 103.02(3) (3) Wholesaler to report costs upon request. In response to a written request from the department, a wholesaler shall file with the department a schedule of the wholesaler's costs for selected dairy products. Costs shall be determined according to ss. ATCP 103.03 to 103.17. Cost information shall be filed in compliance with the department's instructions, on forms prescribed by the department, and within a reasonable time prescribed by the department.

ATCP 103.02(4) (4) Wholesaler prohibited from furnishing equipment to retailer; exemptions. No wholesaler may furnish equipment to a retailer in violation of s. 100.201 (2) (e), Stats. Section 100.201 (2) (e), Stats., does not prohibit a wholesaler from delivering selected dairy products to a retailer in cases or milk carts, nor does it prohibit a retailer from using those cases or milk carts from the temporary storage or display of the selected dairy products delivered in those cases or carts, provided that the cases and carts remain the property of the wholesaler and are returned to the wholesaler at the time of the next wholesale delivery.

ATCP 103.02 History History: Cr. Register, November, 1966, No. 131, eff. 12-1-66; rn. ATCP 103.02 to be ATCP 103.02 (1); cr. (2); Register, January, 1975, No. 229, eff. 2-1-75; correction in (2) (a) made under s. 13.93 (2m) (b) 5., Stats., Register, April, 1993, No. 448; r. and recr. Register, March, 1994, No. 459, eff. 4-1-94.

ATCP 103.03 ATCP 103.03 Cost included. Cost shall include but not be limited to all expense items specified in s. 100.201 (2) (h) 2., Stats. Business records shall be referred to and all expense items incurred which appear or should appear in balance sheets, profit and loss statements and supporting documents and records shall be included in the schedules required to be filed herein. Costs shall not be based on anticipated expenses. Taxes on profits, return on investment, and distribution of equity, capital or profit shall not be included as expense items.

ATCP 103.03 History History: Cr. Register, November, 1966, No. 131, eff. 12-1-66.

ATCP 103.04 ATCP 103.04 Distribution of expenses. The distribution of an expense to specific products or functions shall wherever possible be on the basis of measurement of actual use of material or service. Allocations shall follow the functions or other measurable factors to which they are related. Expenses which are jointly caused by all products or function categories and cannot be assigned to specific cost centers or functions, or products, shall be charged to general expense.

ATCP 103.04 History History: Cr. Register, November, 1966, No. 131, eff. 12-1-66.

ATCP 103.05 ATCP 103.05 Management personnel. The time of officers and management personnel shall be charged to the functions they perform. In the event officers or other personnel receive no salary or other remuneration, a value shall be placed on their services at a rate no lower than the average current labor rate paid in Wisconsin in the dairy product manufacturing industry (3115) category of the “food manufacturing industry (311)" as reported by the Wisconsin department of workforce development in the quarterly census of employment and wages (ES-202).

ATCP 103.05 Note Note: Current labor rates reported in the above periodical may be obtained from the Department of Workforce Development, Division of Employment and Training, Labor Marketing Information Section, 201 East Washington Avenue, P.O. Box 7972, Madison, WI 53707-7972 or the following web address: http://worknet.wisconsin.gov/worknet/daindustry.aspx?menuselection=daperiodical.

ATCP 103.05 History History: Cr. Register, November, 1966, No. 131, eff. 12-1-66; am. Register, March, 1994, No. 459, eff. 4-1-94; correction made under s. 13.93 (2m) (b) 6., Stats., Register October 2004 No. 586; CR 08-075: am. Register April 2009 No. 640, eff. 5-1-09.

ATCP 103.06 ATCP 103.06 Fringe benefits. In the event a wholesaler keeps records of fringe benefits for individual employees or groups of employees, the percentage of fringe benefits expense to total compensation shall be determined. Such percentages shall be used in charging the functions, cost centers or products to which the personnel is charged. If individual or group fringe benefit records are not kept then fringe benefits as a percentage of salaries or wages shall be assigned or allocated in the same manner and be directly proportional to salaries and wages which are assigned or allocated among various functions, cost centers or products.

ATCP 103.06 History History: Cr. Register, November, 1966, No. 131, eff. 12-1-66.

ATCP 103.07 ATCP 103.07 Depreciation. The method of depreciation employed by the wholesaler shall be used in determining depreciation expense. In the event a wholesaler has failed to include depreciation as an expense, it shall be calculated by the straight line method and included as an expense item. If more than one method of depreciation has been employed by a wholesaler, then the method that results in the highest expense shall be used in determining costs.

ATCP 103.07 History History: Cr. Register, November, 1966, No. 131, eff. 12-1-66.

ATCP 103.08 ATCP 103.08 Representative cost. The department may designate the calendar periods from which expense data shall be extracted. The month in which the price under investigation was established shall be included in such period unless a different period is designated. Cost analysis shall be based on the following:

ATCP 103.08(1) (1) Raw material. The most recent raw material expense shall be used to compute costs of individual products. Ingredient cost shall be based on most recent invoice cost.

ATCP 103.08(2) (2) Containers and cases. At least a 4-months' period shall be analyzed for purchase prices, inventory records and trippage records.

ATCP 103.08(3) (3) Methods and wages. Wages in effect on the date the cost analysis is instituted shall be used. Manning tables and schedules for the past 6-months' period shall be used. In the absence of such records, visual observation and work sampling shall be employed. Changes in methods of operation shall not be considered in a cost analysis until such changes have been reflected in expense records for a 30-day period subsequent to such changes.

ATCP 103.08(4) (4) All other expense items. A 6-months' minimum expense experience shall be used to reflect recent long-term costs. In the case of ice cream, current raw material costs shall be used and the most recent 12-months' period shall be used for all other expense items.

ATCP 103.08 History History: Cr. Register, November, 1966, No. 131, eff. 12-1-66.

ATCP 103.09 ATCP 103.09 Adherence to accounting system.

ATCP 103.09(1)(1) The accounting system provided for herein shall be used to determine accurately:

ATCP 103.09(1)(a) (a) The cost of each unit of product at the platform, defined as platform cost.

ATCP 103.09(1)(b) (b) Delivery cost for each type and size of delivery, expressed as delivery cost per unit of product.

ATCP 103.09(2) (2) All expenses of operation from the purchase and receipt of raw material to the sale and delivery of the finished products shall be categorized by functional groupings. Expense data collected under each functional category shall be distributed to other functions, cost centers and products as provided herein and in accordance with the forms and schedules prescribed by the department to arrive at unit costs for all products by size and type of delivery.

ATCP 103.09(3) (3) Upon approval by the department, a wholesaler who maintains sub-records which enable such wholesaler to directly assign rather than indirectly allocate expenses to functions, cost centers, or products, may employ such direct assignment in lieu of following the allocation procedures prescribed for such expenses.

ATCP 103.09 History History: Cr. Register, November, 1966, No. 131, eff. 12-1-66.